Goldwater Institute: Liberty Requires Judicial Watchmen

by Nick Dranias

Judge J. Harvie Wilkinson of the U.S. Court of Appeals, 4th Circuit, recently wrote that the Supreme Court should have deferred to the political process rather than strike down Washington, D.C.'s gun ban under the Second Amendment. He argued that liberty is diminished by "handing our democratic destiny to the courts," calling for judicial disengagement from divisive constitutional disputes.

But an engaged judiciary is crucial to safeguarding our republic. This is because any guarantee of liberty is meaningless unless someone stands up for it.

A case in point is Citizens for Constitutional Fairness versus Jackson County, which struck down an effort to undermine the property rights protections guaranteed by Oregon's Proposition 37.

Like Arizona's Proposition 207, Oregon's proposition generally promised compensation to landowners when property values were reduced by new regulations. But Prop. 37 did not stop there. Prop. 37 also required compensation for pre-existing regulations unless the government would agree to waive them.

Jackson County, like many local governments in Oregon, chose the waiver option to avoid compensating people like Velma A. Dickey, whose property was threatened by development restrictions.

But in 2007, Oregon passed Prop. 49, disqualifying Mrs. Dickey and others from Prop. 37's protections. Predictably, Jackson County then reneged on its waiver agreement, upending Mrs. Dickey's plans for her property.

The deferential judiciary preferred by people like Judge Wilkinson would have done nothing, surrendering Mrs. Dickey's fate to the political process. Fortunately, U.S. District Court Judge Owen M. Panner had no fear of engagement. He ruled the County "must honor its obligations" or else it would violate the Contracts Clause of the U.S. Constitution.

Judge Panner recognized that the political process is merely a confluence of legislative deliberation, executive discretion, majority will and special interest influence. These competing forces alone often cause the law to flow in liberty's general direction. But too often the political process impedes liberty. When it does, eternal vigilance requires the watchmen of an engaged judiciary.